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Seven Democrats Write Obama Asking Him to Declassify More Information on Russian Involvement in the Election

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Ron Wyden, five other Democrats, and Dem caucusing Independent Angus King just wrote Obama a cryptic letter. The entire body of the letter reads:

We believe there is additional information concerning the Russian Government and the U.S. election that should be declassified and released to the public. We are conveying specifics through classified channels.

Thank you for your attention to this important matter.

Aside from the fact that this suggests (as Wyden’s cryptic letters always d0) there is something meaty that we really ought to know, I find the list of signers rather curious. In addition to Wyden, the following Senators signed the letter:

  • Jack Reed
  • Mark Warner
  • Barb Mikulski
  • Martin Heinrich
  • Angus King
  • Mazie Hirono

That is, every Democratic SSCI member except current Chair Dianne Feinstein, plus Senate Armed Services Chair Jack Reed, signed the letter. So every Democrat except DiFi and Majority Leader Harry Reid signed the letter, suggesting it is something that got briefed to the full Senate Intelligence Committee as well as the Ranking Members of SASC (the latter of which suggests NSA or CYBERCOM may be involved).

I’m as interested in the fact that DiFi and Reid didn’t sign as that the others did sign. It can’t be that Reid is retiring and DiFi is heading to SJC (it’s still unclear whether she’ll remain on SSCI or not). After all, Mikulski is retiring as well.

Plus, Harry Reid wrote a far more explicit letter last month to Jim Comey — apparently following up on a non-public letter send months earlier — alluding to direct coordination between Trump and Russia.

In my communications with you and other top officials in the national security community, it has become clear that you possess explosive information about close ties and coordination between Donald Trump, his top advisors, and the Russian government – a foreign interest openly hostile to the United States, which Trump praises at every opportunity. The public has a right to know this information. I wrote to you months ago calling for this information to be released to the public. There is no danger to American interests from releasing it. And yet, you continue to resist calls to inform the public of this critical information.

Finally, what to make of the fact that not even John McCain signed onto this letter? Reed’s inclusion makes it clear that McCain, too, must have been briefed. He has been outspoken about Trump’s moves to cozy up to Putin. If he has seen — and objects to — such coordination, why not sign onto this letter and give it the patina of bipartisanship?

As Debunking Continues, Congress Pushes for US Contractors to Profit Off Iron Dome

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Schematic of Iron Dome missile defense system. (Wikimedia Commons image, rotated 180 degrees)

Schematic of Iron Dome defense system. (Wikimedia Commons image, rotated 180 degrees)

Back in April, I wrote about the horrible success rate of Israel’s Iron Dome defense system and the outrageous sums of money that the US has poured into it. With more rockets now being fired fired from Gaza and Israel responding by massacring Palestinians who have no escape, the Iron Dome system is getting renewed attention. And as with much in the Israel-Palestine situation, there is the propaganda we see in much of the main press and then there is the stark reality behind it that is vastly different.

Writing in The Atlantic, James Fallows noted a week and a half ago how the Washington Post had swallowed the propaganda completely, putting up the headline ‘Israel’s “Dome’ changes the fight” and provided a snippet of the Post’s praise:

To Israeli security officials, the success of Iron Dome is akin to that of the separation barrier between Israel and the West Bank, which they say helped bring an end to an onslaught of suicide bombings in the early 2000s.

The Iron Dome system has rendered rockets so ineffective that Hamas and its allies have, in recent days, been attempting more-creative ways of attacking Israel.

To debunk this baseless propaganda, Fallows relied heavily on an article by John Mecklin in the Bulletin of the Atomic Scientists. Mecklin pulls no punches, titling his piece “Iron Dome: the public relations weapon”. Unlike the Post’s propaganda, Mecklin backs up his piece with evidence, experts and explanations that ring true to common sense:

With the latest rounds of rocket fire from Hamas fighters in the Gaza strip, Israel’s missile defense system, known as Iron Dome, is getting a lot of press again, much of it positive. As with much reporting on missile defense, however, the Iron Dome coverage has lacked context and misconstrued reality.

/snip/

Ted Postol, an MIT-based missile defense expert and frequent Bulletin contributor, provided a dose of context to the Iron Dome coverage in a National Public Radio interview Wednesday. “We can tell, for sure, from video images and even photographs that the Iron Dome system is not working very well at all,” Postol said. “It—my guess is maybe [it hits a targeted missile] 5 percent of the time—could be even lower. … And when you look—what you can do in the daytime—you can see the smoky contrail of each Iron Dome interceptor, and you can see the Iron Domes trying to intercept the artillery rockets side on and from behind. In those geometries, the Iron Dome has no chance, for all practical purposes, of destroying the artillery rocket.”

For Iron Dome interceptors to work properly, they have to hit the incoming rockets head-on. See this description for Bloomberg from Richard Lloyd, who often collaborates with Postol: Read more →

When Judge Reggie Walton Disappeared the FBI Director: The Tell that FISC Wasn’t Following the Law

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SEN. MIKULSKI: General Clapper, there are 36 different legal opinions.

DIR. CLAPPER: I realize that.

SEN. MIKULSKI: Thirty-six say the program’s constitutional. Judge Leon said it’s not.

Thirty-six “legal opinions” have deemed the dragnet legal and constitutional, its defenders say defensively, over and over again.

But that’s not right — not by a long shot, as ACLU’s Brett Max Kaufman pointed out in a post yesterday. In its report, PCLOB confirmed what I first guessed 4 months ago: the FISA Court never got around to writing an opinion considering the legality or constitutionality of the dragnet until August 29, 2013.

FISC judges, on 33 occasions before then, signed off on the dragnet without bothering to give it comprehensive legal review.

Sure, after the program had been reauthorized 11 times, Reggie Walton considered the more narrow question of whether the program violates the Stored Communications Act (I suspect, but cannot yet prove, that the government presented that question because of concerns raised by DOJ IG Glenn Fine). But until Claire Eagan’s “strange” opinion in August, no judge considered in systematic fashion whether the dragnet was legal or constitutional.

And the thing is, I think FISC judge — now Presiding Judge — Reggie Walton realized around about 2009 what they had done. I think he realized the program didn’t fit the statute.

Consider a key problem with the dragnet — another one I discussed before PCLOB (though I was not the first or only one to do so). The wrong agency is using it.

Section 215 does not authorize the NSA to acquire anything at all. Instead, it permits the FBI to obtain records for use in its own investigations. If our surveillance programs are to be governed by law, this clear congressional determination about which federal agency should obtain these records must be followed.

Section 215 expressly allows only the FBI to acquire records and other tangible things that are relevant to its foreign intelligence and counterterrorism investigations. Its text makes unmistakably clear the connection between this limitation and the overall design of the statute. Applications to the FISA court must be made by the director of the FBI or a subordinate. The records sought must be relevant to an authorized FBI investigation. Records produced in response to an order are to be “made available to,” “obtained” by, and “received by” the FBI. The Attorney General is directed to adopt minimization procedures governing the FBI’s retention and dissemination of the records it obtains pursuant to an order. Before granting a Section 215 application, the FISA court must find that the application enumerates the minimization procedures that the FBI will follow in handling the records it obtains. [my emphasis, footnotes removed]

The Executive convinced the FISA Court, over and over and over, to approve collection for NSA’s use using a law authorizing collection only by FBI.

Which is why I wanted to point out something else Walton cleaned up in 2009, along with watchlists of 3,000 Americans who had not received First Amendment Review. Judge Reggie Walton disappeared the FBI Director.

>>>Poof!<<<

Gone.

The structure of all the dragnet orders released so far (save Eagan’s opinion) follow a similar general structure:

  • An (unnumbered, unlettered) preamble paragraph describing that the FBI Director made a request
  • 3-4 paragraphs measuring the request against the statute, followed by some “wherefore” language
  • A number of paragraphs describing the order, consisting of the description of the phone records required, followed by 2 minimization paragraphs, the first pertaining to FBI and,
  • The second paragraph introducing minimization procedures for NSA, followed by a larger number of lettered paragraphs describing the treatment of the records and queries (this section got quite long during the 2009 period when Walton was trying to clean up the dragnet and remains longer to this day because of the DOJ oversight Walton required)

Here’s how the first three paragraphs looked in the first order and (best as I can tell) the next 11 orders, including Walton’s first order in December 2008:

An application having been made by the Director of the Federal Bureau of Investigation (FBI) for an order pursuant to the Foreign Intelligence Surveillance Act of 1978 (the Act), Title 50, United States Code (U.S.C.), § 1861, as amended, requiring the production to the National Security Agency (NSA) of the tangible things described below, and full consideration having been given to the matters set forth therein, the Court finds that:

1. The Director of the FBI is authorized to make an application for an order requiring the production of any tangible thing for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the First Amendment to the Constitution of the United States. [50 U.S.C. § 1861 (c)(1)]

2. The tangible things to be produced are all call-detail records or “telephone metadata” created by [the telecoms]. Telephone metadata includes …

[snip]

3. There are reasonable grounds to believe that the tangible things sought are relevant to authorized investigations (other than threat assessments) being conducted by the FBI under guidelines approved by the Attorney General under Executive Order 12,333 to protect against international terrorism, … [my emphasis]

Here’s how the next order and all (released) following orders start [save the bracketed language, which is unique to this order]:

An verified application having been made by the Director of the Federal Bureau of Investigation (FBI) for an order pursuant to the Foreign Intelligence Surveillance Act of 1978 (FISA), as amended, 50 U.S.C. § 1861, requiring the production to the National Security Agency (NSA) of the tangible things described below, and full consideration having been given to the matters set forth therein, [as well as the government’s filings in Docket Number BR 08-13 (the prior renewal of the above-captioned matter),] the Court finds that:

1. There are reasonable grounds to believe that the tangible things sought are relevant to authorized investigations (other than threat assessments) being conducted by the FBI under guidelines approved by the Attorney General under Executive Order 12333 to protect against international terrorism, …

That is, Walton took out the paragraph — which he indicated in his opinion 3 months earlier derived from the statutory language at 50 U.S.C. § 1861 (c)(1) — pertaining to the FBI Director. The paragraph always fudged the issue anyway, as it doesn’t discuss the FBI Director’s authority to obtain this for the NSA. Nevertheless, Walton seems to have found that discussion unnecessary or unhelpful.

Walton’s March 5, 2009 order and all others since have just 3 statutory paragraphs, which basically say:

  1. The tangible things are relevant to authorized FBI investigations conducted under EO 12333 — Walton cites 50 USC 1861 (c)(1) here
  2. The tangible things could be obtained by a subpoena duces tecum (50 USC 1861 (c)(2)(D)
  3. The application includes an enumeration of minimization procedures — Walton doesn’t cite statute in this May 5, 2009 order, but later orders would cite 50 USC 1861 (c)(1) again

Here’s what 50 USC 1861 (c)(1), in its entirety, says:

(1) Upon an application made pursuant to this section, if the judge finds that the application meets the requirements of subsections (a) and (b), the judge shall enter an ex parte order as requested, or as modified, approving the release of tangible things. Such order shall direct that minimization procedures adopted pursuant to subsection (g) be followed.

And here are two key parts of subsections (a) and (b) — in addition to “relevant” language that has always been included in the dragnet orders.

(a) Application for order; conduct of investigation generally

(1) Subject to paragraph (3), the Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things

[snip]

(2) shall include—

[snip]

(B) an enumeration of the minimization procedures adopted by the Attorney General under subsection (g) that are applicable to the retention and dissemination by the Federal Bureau of Investigation of any tangible things to be made available to the Federal Bureau of Investigation based on the order requested in such application.

FBI … FBI … FBI.

The language incorporated in 50 USC 1861 (c)(1) that has always been cited as the standard judges must follow emphasizes the FBI repeatedly (PCLOB laid out that fact at length in their analysis of the program). And even Reggie Walton once admitted that fact.

And then, following his lead, FISC stopped mentioning that in its statutory analysis altogether.

Eagan didn’t even consider that language in her “strange” opinion, not even when citing the passages (here, pertaining to minimization) of Section 215 that directly mention the FBI.

Section 215 of the USA PATRIOT Act created a statutory framework, the various parts of which are designed to ensure not only that the government has access to the information it needs for authorized investigations, but also that there are protections and prohibitions in place to safeguard U.S. person information. It requires the government to demonstrate, among other things, that there is “an investigation to obtain foreign intelligence information … to [in this case] protect against international terrorism,” 50 U.S.C. § 1861(a)(1); that investigations of U.S. persons are “not conducted solely upon the basis of activities protected by the first amendment to the Constitution,” id.; that the investigation is “conducted under guidelines approved by the Attorney General under Executive Order 12333,” id. § 1861(a)(2); that there is “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant” to the investigation, id. § 1861(b)(2)(A);14 that there are adequate minimization procedures “applicable to the retention and dissemination” of the information requested, id. § 1861(b)(2)(B); and, that only the production of such things that could be “obtained with a subpoena duces tecum” or “any other order issued by a court of the United States directing the production of records” may be ordered, id. § 1861(c)(2)(D), see infra Part III.a. (discussing Section 2703(d) of the Stored Communications Act). If the Court determines that the government has met the requirements of Section 215, it shall enter an ex parte order compelling production.

This Court must verify that each statutory provision is satisfied before issuing the requested Orders. For example, even if the Court finds that the records requested are relevant to an investigation, it may not authorize the production if the minimization procedures are insufficient. Under Section 215, minimization procedures are “specific procedures that are reasonably designed in light of the purpose and technique of an order for the production of tangible things, to minimize the retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information.” Id. § 1861(g)(2)(A)

Reggie Walton disappeared the FBI Director as a statutory requirement (he retained that preamble paragraph, the nod to authorized FBI investigations, and the perfunctory paragraph on minimization of data provided from NSA to FBI) on March 5, 2009, and he has never been heard from in discussions of the FISC again.

Now I can imagine someone like Steven Bradbury making an argument that so long as the FBI Director actually signed the application, and so long as the FBI had minimization procedures for the as few as 16 tips they receive from the program in a given year, it was all good to use an FBI statute to let the NSA collect a dragnet potentially incorporating all the phone records of all Americans. I can imagine Bradbury pointing to the passive construction of that “things to be made available” language and suggest so long as there were minimization procedures about FBI receipt somewhere, the fact that the order underlying that passive voice was directed at the telecoms didn’t matter. That would be a patently dishonest argument, but not one I’d put beyond a hack like Bradbury.

The thing is, no one has made it. Not Malcolm Howard in the first order authorizing the dragnet, not DOJ in its request for that order (indeed, as PCLOB pointed out, the application relied heavily on Keith Alexander’s declaration about how the data would be used). The closest anyone has come is the white paper written last year that emphasizes the relevance to FBI investigations.

But no one I know of has affirmatively argued that it’s cool to use an FBI statute for the NSA. In the face of all the evidence that the dragnet has not helped the FBI thwart a single plot — maybe hasn’t even helped the FBI catch one Somali-American donating less than $10,000 to al-Shabaab, as they’ve been crowing for months — FBI Director Jim Comey has stated to Congress that the dragnet is useful to the FBI primarily for agility (though the record doesn’t back Comey’s claim).

Which leaves us with the only conclusion that makes sense given the Executive’s failure to prove it is useful at all: it’s not the FBI that uses it, it’s NSA. They don’t want to tell us how the NSA uses it, in part, because we’ll realize all their reassurances about protections for Americans fall flat for the millions of Americans who are 3 degrees away from a potential suspect.

But they also don’t want to admit that it’s the NSA that uses it, because then it’ll become far more clear how patently illegal this program has been from the start.

Better to just disappear the FBI Director and hope no one starts investigating the disappearance.

Edward Snowden: Congress Has Immunity from Spying, But You Don’t

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I’ll admit from the start that the Snowden chat at the Guardian was a brilliant journalistic and technical feat. At the same time, it’s clear that Snowden is still closely following the news, and presumably shaping his answers for maximal political effect.

So I take this comment, the last words he spoke on the chat, with a grain of salt.

This is the precise reason that NSA provides Congress with a special immunity to its surveillance.

Certainly, it would seem technically feasible to block all Verizon numbers associated with official Congressional communications devices. It would be far harder to block the abundant communications devices tied to campaign activity.

From this, shall we assume the White House and Courts are also immune?

Contrast that with Snowden’s claims about we peons’ communications.

NSA likes to use “domestic” as a weasel word here for a number of reasons. The reality is that due to the FISA Amendments Act and its section 702 authorities, Americans’ communications are collected and viewed on a daily basis on the certification of an analyst rather than a warrant. They excuse this as “incidental” collection, but at the end of the day, someone at NSA still has the content of your communications. Even in the event of “warranted” intercept, it’s important to understand the intelligence community doesn’t always deal with what you would consider a “real” warrant like a Police department would have to, the “warrant” is more of a templated form they fill out and send to a reliable judge with a rubber stamp.

[snip]

US Persons do enjoy limited policy protections (and again, it’s important to understand that policy protection is no protection – policy is a one-way ratchet that only loosens) and one very weak technical protection – a near-the-front-end filter at our ingestion points. The filter is constantly out of date, is set at what is euphemistically referred to as the “widest allowable aperture,” and can be stripped out at any time. Even with the filter, US comms get ingested, and even more so as soon as they leave the border. Your protected communications shouldn’t stop being protected communications just because of the IP they’re tagged with.

I do believe I pointed out James Clapper using “domestic” as just on such weasel word (I prefer to call it Orwellian turd-splat) this morning!

Clearly, Snowden is trying to make it clear that our Congressional overseers aren’t protecting our interests as well as the NSA has protected theirs (for good reasons under the Constitution, I would add).

So this claim may just be an effort to make us more pissed.

Remember, however, the day after the first leak on this, Eric Holder testified before the Senate Appropriations Committee. Barbara Milulski, who (as a tremendously powerful Senator representing NSA) had not previously publicly ever met NSA surveillance she didn’t like, was up in arms about the possibility the government was surveilling her communications.

Those concerns had been placated by the time Keith Alexander testified a day or so later.

So while Snowden is clearly trying to push the debate, it is also quite likely that the immunity comment is true.

Breaking! Brennan Extends No Rule Drones for 2 Years

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It’s hard to take this story — reporting, Exclusive: No More Drones for CIA — all that seriously given this assertion:

Brennan has publicly stated that he would like to see the CIA move away from the kinds of paramilitary operations it began after the September 11 attacks, and return to its more traditional role of gathering and analyzing intelligence.

Here’s what Brennan has in fact said about paramilitary operations and the CIA, in statements to Congress and therefore presumably with a bit more legal weight than what he says secretly to journalists.

What role do you see for the CIA in paramilitary-style intelligence activities or covert action?

The CIA, a successor to the Office of Strategic Services, has a long history of carrying out paramilitary-style intelligence activities and must continue to be able to provide the President with this option should he want to employ it to accomplish critical national security objectives.

How do you distinguish between the appropriate roles of the CIA and elements of the Department of Defense in paramilitary-style covert action?

As stated in my response to Question 6 above, the CIA and DOD must be ready to carry out missions at the direction of the President. The President must be able to select which element is best suited. Factors that should be considered include the capabilities sought, the experience and skills needed, the material required, and whether the activity must be conducted covertly. [my emphasis]

What Brennan does have the habit of doing is providing evasive answers when people who want CIA out of the paramilitary business ask him about it, as he did several times in his confirmation hearing.

MIKULSKI: So, let me get to my questions. I have been concerned for some time that there is a changing nature of the CIA, and that instead of it being America’s top spy agency, top human spy agency to make sure that we have no strategic surprises, that it has become more and more executing paramilitary operations.

And I discussed this with you in our conversation. How do you see this? I see this as mission-creep. I see this as overriding the original mission of the CIA, for which you’re so well versed, and more a function of the Special Operations Command. Could you share with me how you see the CIA and what you think about this militarization of the CIA that’s going on?

BRENNAN: Senator, the principal mission of the agency is to collect intelligence, uncover those secrets, as you say, to prevent those strategic surprises and to be the best analytic component within the U.S. government, to do the allsource analysis that CIA has done so well for many, many years. At times, the president asks and directs the CIA to do covert action. That covert action can take any number of forms, to include paramilitary.

[snip]

And the CIA should not be doing traditional military activities and operations.

Now, Brennan has actually made that last comment — that he wants CIA out of traditional military activities — several times, as well.

From this we can make the following conclusions:

  • If flying remotely piloted aerial vehicles and shooting missiles from them is a traditional military operation — and they sure should be — then Brennan wants out.
  • If flying remotely piloted aerial vehicles and shooting missiles from them is a paramilitary operation (which is the implied understanding of most people who comment on this), then Brennan very much plans on keeping that capability in case the President wants to conduct such operations covertly.

Read more →

FBI Director Mueller Boasts of FBI’s Cyber Expertise before Anonymous Hacks Cyber Call

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As you may have heard, Anonymous hacked into and released a conference call between the FBI and Scotland Yard discussing their efforts to crack down on the hackers’ group.

What makes the hack all the more ironic is its release comes just days after Robert Mueller bragged of the FBI’s cyber expertise at the Threat Assessment hearing on Tuesday (the actual call took place on January 17, which makes me wonder whether they have gotten subsequent calls as well). In response to MD (and therefore NSA’s) Senator Barbara Mikulski’s suggestion that the NSA was the only entity able to investigate cybercrime, Mueller insisted (after 2:01) the FBI can match the expertise of NSA. He even bragged about how important partnering with counterparts in other countries–like Scotland Yard–was to the FBI’s expertise.

Mueller: If I may interject, we have built up a substantial bit of expertise in this arena over a period of time, not only domestically but internationally. We have agents that are positioned overseas to work closely with–embedded with–our counterparts in a number of countries, and so we have, over a period of time, built up an expertise. That is not to say that NSA doesn’t have a substantial bit of expertise also, understanding where it’s located.

Mikulski: But it’s a different kind.

Mueller: Well, no, much of it is the same kind, much of it is the same kind, in terms of power, I think NSA has more power, in the sense of capabilities, but in terms of expertise, I would not sell ourselves short.

I don’t want to sell the FBI short or anything. But regardless of their expertise in investigating cybercrimes, it sure seems like they’ve got the same crappy security the rest of the Federal government has.